FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. DR-2015-32] HONORABLE MELISSA RICHARDSON, JUDGE
E. Lilly, for appellant/cross-appellee.
Office of Wendell L. Hoskins II, by: Wendell L. Hoskins II,
D. VAUGHT, JUDGE
Riddick appeals the final order entered by the Circuit Court
of Mississippi County denying his motion to modify custody
and granting Emily Harris's motion to modify child
support. On cross-appeal, Harris argues that the trial court
erred in calculating Riddick's income for child-support
purposes; finding her in contempt of the summer visitation
schedule; modifying Riddick's visitation; denying her
request to make Riddick's increased child-support
obligation retroactive; and denying her request for
attorney's fees. We affirm on direct appeal and reverse
in part and affirm in part on cross-appeal.
parties' divorce decree, entered on February 20, 2009,
awarded Harris custody of the parties' son K.R., born May
27, 2007, subject to Riddick's visitation rights. On
April 18, 2014, Riddick filed a petition for emergency order
of custody, petition to modify the divorce decree, and
petition for order to show cause and contempt. Riddick
alleged that a material and substantial change in
circumstances had occurred that justified the modification of
custody, visitation, and child support. In response, Harris
filed a petition for modification of child support.
hearing was held on January 21-22, 2015. On June 26, 2015,
the trial court issued its final order. Among other things,
the trial court denied Riddick's petition to modify
custody; granted his petition to modify visitation; granted
Harris's petition to modify Riddick's child-support
obligation; granted Riddick's petition for contempt and
ordered Harris to pay Riddick $500 in attorney's fees;
and found that the parties should bear their own
attorney's fees. This appeal and cross-appeal followed.
first point on appeal, Riddick argues that the trial court
clearly erred in denying his petition to modify custody. The
facts were undisputed that since the parties' divorce,
Harris had moved twice, had enrolled K.R. in two different
school districts, had four boyfriends, had been engaged to
two men, had a child (B.G.) out of wedlock with Clayton
Gentry, was served a paternity action by Gentry and hired
attorney Jim Harris to represent her in that action, began
dating Jim Harris (who is twenty-three years older than she)
the following month, married him a few months after that, and
was expecting his child.
testified about an incident in the summer of 2013. Around
11:00 p.m., Harris showed up at his apartment unannounced and
became upset when she saw another woman there. Gentry said
that Harris cursed, called the other woman "bad names,
" left the apartment, and got into her vehicle, where
she had left B.G. alone. Harris then pulled her vehicle up to
Gentry's front door, honked, and continued to yell.
Gentry came out to the car, and when he leaned his arm on the
car door, which was open, Harris "hammered down on the
gas and drove [him] through [his] ditch, " until he
could stop the vehicle.
there was evidence that after Riddick had filed the petition
to modify custody in April 2014, Harris engaged in a pattern
of behavior calculated to limit and diminish K.R.'s
relationship with Riddick by unilaterally changing the
parties' visitation schedule.
letter opinion, the trial court found that a material change
in circumstances had occurred. However, the trial court
disagreed that a change of custody was in K.R.'s best
interest. The court found that both Riddick and Harris were
loving, involved parents, who had strong bonds with K.R. The
court found that K.R. was happy at the homes of both of his
parents. Both stepparents testified that they loved K.R. and
welcomed his presence in their homes. The court also found
that the parties agreed that K.R. was a happy, well-adjusted
child. K.R.'s teacher testified that he was an excellent
student, who was motivated and worked hard. The trial court
also found that Harris's behavior had stabilized upon her
marriage to Jim Harris and that they seemingly had a loving
relationship. Further, the court found that there was no
evidence that Harris's prior unstable behavior had
negatively impacted K.R. Finally, the trial court noted that
K.R. had lived the past three years with his younger brother
B.G. and that it was in K.R.'s best interest to remain
with his sibling.
law is well settled that the primary consideration in
child-custody cases is the welfare and best interest of the
children; all other considerations are secondary. Evans
v. McKinney, 2014 Ark.App. 440, at 4, 440 S.W.3d 357,
359. Generally, courts impose more stringent standards for
modifications in custody than they do for initial
determinations of custody. Id., 440 S.W.3d at 359.
The reason for requiring more stringent standards for
modifications than for initial custody determinations is to
promote stability and continuity in the life of the child and
to discourage repeated litigation of the same issues.
Id., 440 S.W.3d at 359.
party seeking modification of the custody order has the
burden of showing a material change in circumstances.
Id., 440 S.W.3d at 359. In order to change custody,
the trial court must first determine that a material change
in circumstances has occurred since the last order of
custody; if that threshold requirement is met, it must then
determine who should have custody with the sole consideration
being the best interest of the children. Id., 440
S.W.3d at 359. In reviewing child-custody cases, we consider
the evidence de novo, but will not reverse a trial
court's findings unless they are clearly erroneous or
clearly against the preponderance of the evidence.
Id., 440 S.W.3d at 359.
argues that the trial court clearly erred in determining that
it was in the best interest of K.R. to remain in his
mother's custody. In support of his argument, Riddick
restates all of the evidence of Harris's unstable
behavior, argues that she has intentionally alienated him
from his child, and points out that he and his wife can
provide a stable life for K.R.
on a de novo review, we hold that the trial court did not
clearly err in finding that it was not in K.R.'s best
interest to change custody to Riddick. In an extremely
detailed letter opinion, the trial court noted that both
parents love K.R. and were capable of caring for him.
However, the court found there was no reason to alter the
current custodial arrangement to which K.R. was accustomed
because he is a happy, well-adjusted child, who was
performing very well in school. The court also properly
considered that K.R. had formed a bond with his younger
brother and that it was important that they continue to live
together. See Sykes v. Warren, 99 Ark.App. 210, 217,
258 S.W.3d 788, 793 (2007) (recognizing that unless
exceptional circumstances are involved, young children should
not be separated from each other by dividing their custody).
Finally, the court found that the questionable behavior of
Harris had not negatively impacted K.R. and that since she
had remarried, her behavior had stabilized. We will not
substitute our judgment for that of the trial court, which
observed the witnesses first hand. Evans, 2014
Ark.App. 440, at 6, 440 S.W.3d at 360. There are no cases in
which the superior position, ability, and opportunity of the
trial judge to observe the parties carry a greater weight
than those involving the custody of minor children, and our
deference to the trial judge in matters of credibility is
correspondingly greater in such cases. Id., 440
S.W.3d at 360. Therefore, we affirm on this point.
second point on direct appeal is that the trial court abused
its discretion in modifying his child-support obligation. As
a rule, when the amount of child support is at issue, we will
not reverse the trial court absent an abuse of discretion.
Browning v. Browning, 2015 Ark.App. 104, at 6, 455
S.W.3d 863, 867.
to the divorce decree, Riddick was ordered to pay $501 per
month in child support. Riddick's support payments were
later abated to $472.09 per month to account for his six-week
summer visitation. At the January 2015 hearing, the evidence
established that Riddick had experienced a material increase
in income, which was derived from three sources: wages from
his employer Syngenta; rental income; and farm income. In its
letter opinions, the trial court found that Riddick's net
monthly income was $8, 735.36. ...